We have recently reported on the Sixth Circuit’s recentrecord in circuit splits.  Considering circuit splits raises an interesting question: If the circuit courts have not acknowledged a circuit split, how much attention should the Supreme Court pay to district courts’ perceptions when deciding whether to grant cert?  The district court is presumably neutral on the issue of the split, and its decisions are good evidence of confusion in the lower courts.  Just because a district court can’t originate a circuit split, there’s no reason it can’t recognize one.

In White v. Baptist Memorial Health Care Corporation, the Sixth Circuit did not believe it created a split on whether, under the FLSA, an employee’s failure to follow reporting procedures should preclude her claim for unpaid time.  Instead, the Sixth Circuit distinguished the circuit cases in apparent tension with its decision.  If no other circuit court has acknowledged a split, does that mean there isn’t one?

Less than two weeks after a cert petition was filed in White, the District of Maryland issued Smith v. ABC Training Center of Maryland, characterizing White as part of a circuit split with the Fifth, Sixth and Ninth Circuits on one side—holding that failure to report extra work time estops an employee from claiming unpaid over time—and the Second Circuit on the other side.

When district courts are confused by the circuits’ jurisprudence, the Supreme Court should take notice.  Appellate courts are often reluctant to openly admit to disagreeing with other circuits, and, in such cases, often strain to make plausible distinctions on the facts.  This phenomenon hurts the district courts by creating overlapping and contradictory precedents that are difficult to apply and by concealing the confusion from the Supreme Court, delaying the final resolution that only the Supreme Court can provide.  Although circuit court opinions usually carry more weight, perhaps the district courts are actually more reliable observers when it comes to whether the circuits have split.